If you’ve ever been in court you know judges have a pretty powerful job. I’ve only been in court twice for issues in which I was personally involved, and both times I came away shaking my head at how easy it was for the judge to push his agenda.
Easily the most egregious thing I’ve seen in a courtroom was when former Circuit Court Judge Herman Thomas was on trial for paddling and allegedly sexually assaulting prisoners. In that instance the members of our local bench rightly recused themselves from overseeing the trial of a colleague, and then-Chief Justice of the Alabama Supreme Court Sue Bell Cobb appointed retired judge Claud Neilson to handle things. At the end of a trial in which almost everyone present at least felt it was obvious Thomas had been spanking prisoners (at least), the jury deadlocked on a number of charges. On some of those charges it was 11-1 for conviction, with one holdout juror refusing to find Judge Spanky guilty of anything.
The jury was hung and it looked like Thomas and the state would be sparring again in the not-too-distant future, when Neilson woke up from one of many naps he took during the trial, waved his hand and simply tossed all the charges against Thomas. No more hung jury, no more trial and no justice for a number of men who testified about having had to go into a little room in Government Plaza and pull down their pants so Thomas could hit their bare butts with his wooden paddle.
I say all that to simply point out how much clout a judge has in his or her courtroom. Certainly to my knowledge the vast majority of our jurists in Mobile County handle their positions well and do the very best to dispense justice in the fairest manner possible. But that black robe does come with some juice, so it’s important those wearing it don’t do things that could bring their ethics and credibility into question.
Over the past couple of weeks we’ve run a few stories about the behind-the-scenes power struggles in the Mobile County courts. These were in large part prompted by former Circuit Court Judge Rusty Johnston, who took to Facebook at the beginning of January and began posting about things he thought were problems when he was on the bench. Johnston retired last year after facing a Judicial Inquiries Commission hearing about his behavior and performance. He says the issues he had were related to having narcolepsy, but they were used to vilify him and get him off the bench.
And to be sure, he aims much of his animosity at Presiding Circuit Court Judge Charlie Graddick, who he accuses of improperly staying on the Judicial Nominating Committee that helps pick new judges when an appointment is necessary. Whether Graddick improperly stayed on that committee or not is really a matter up for interpretation, it seems. What’s more troubling is the way that committee is used so often to seemingly give a leg up to those who do end up on the bench.
In Mobile County a sitting judge facing competition in an election is about as rare as a good Super Bowl halftime show involving Coldplay. As we’ve investigated the situation, it’s become obvious that once you’re a judge in Mobile County, chances are you’re not going to have to worry about re-election. That’s odd considering there are so many lawyers in town and being a judge is the kind of powerful position that usually attracts suitors.
We’ve talked with several lawyers who explained trying to run against a sitting judge isn’t a smart thing to do because if you lose you may never be able to practice in front of your opponent again and expect a fair shake. Some have gone further and said they were told outright by other judges not to run, either because winning would be improbable because the money is on the incumbent, or because running would be bad for their business — especially if a lot of that business is getting indigent defense appointments.
So maybe that’s why few local judges have ever faced a challenger. Which gets back to the importance of the Judicial Nominating Committee. One pattern that has emerged is the tendency for outgoing judges to retire mid-term rather than waiting until a new election is near. This means the Selection Committee must pick three names to send to the governor, who appoints one as a judge. It also means that new judge will already be an incumbent when he or she runs for election the first time — definitely an advantage.
In that regard, membership on the Selection Committee is a true gatekeeping function and one that no doubt holds sway over attorneys who might one day want to be a judge.
Another issue Johnston brought up was the involvement of four local judges in a condo-flipping scheme that doesn’t pass the smell test in my opinion. In 2005, at the height of the condominium boom along the coast, attorney Habib Yazdi approached all of the judges in the circuit with an opportunity to put down virtually nothing on new Florida condos, flip them to a new owner at the time of closing and make about half a million bucks apiece.
Johnston says he and most other judges declined the offer because Yazdi practiced in front of them and is also the county’s biggest indigent defense attorney, and at that time was routinely being appointed to more than $200,000 of that type of work a year — by the very judges he wanted to help make a quick $500K. But Graddick, Herman Thomas, George Hardesty and Judson Wells all went in on the deal anyway.
Unfortunately the market crashed and it looked like our intrepid real estate investors might have to pony up some serious cash. But the judges filed suit in Florida to fight the developer and keep him from getting their money, and Graddick even filed in Mobile County to get a restraining order against his creditors. Sue Bell sent down another special judge, and — bada bing! — the letter of credit was frozen. Eventually they won their case in Florida and were released from paying for the condos.
Now, maybe there were legit reasons the judicial investors club shouldn’t have had to pay to buy those condos, but to say it looks fishy is an understatement. I have a hard time imagining most of us would have had such good fortune, or even been offered such a deal.
Like I said, being a judge comes with a great deal of power, and therefore should come with a great deal of scrutiny. Regardless of whether those four judges should have been able to squirm out of their financial obligations when their condo deal went south, it’s hard to see how any of them should have been involved in having Yazdi put such a deal together in the first place.
And the way the system has been manipulated to essentially turn what is supposed to be an elected position into a lifetime appointment appears no more ethical. I hope our judges will “check themselves,” as the kids say, and make running an ethical bench as much a priority as staying in office or making money.